Open Access News

News from the open access movement

Thursday, September 11, 2008

More on attempts to undo the NIH policy

Today, the U.S. House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on the Fair Copyright in Research Works Act, H.R. 6845. The text of the legislation was introduced on September 9. The legislation would overturn the National Institutes of Health's mandatory public access policy.

The witness' written testimony is now available: See also the blog notes on the hearing by Karen Rustad:

... The only reason this has even made it to public comment (I think) is a bunch of representatives feeling slighted because a bill passed Congress without going through their committee (the Subcommittee on Courts, the Internet, and IP–the measure was part of an Appropriations bill, so it went through that committee). The grumbling at the opening of the session about how important their committee is, prestige of the Appropriations committee be damned, rah rah rah, I think bears this out. So the representatives have been receptive to the patently ridiculous argument that the NIH mandate *changed* copyright law and, thus, should have fallen under their purview. ...

Bottom line: it’s a contract. It’s not a copyright law! The only way the NIH OA mandate conflicts with copyright law is if you change copyright law, which is what the publishers are trying to do now. After all, if it really conflicted, why haven’t the publishers just sued the NIH (as they have also rattled sabres about)?

Maybe because they’d lose. ...

  • Now that we have the text of the bill, we see that it would prevent any federal agency from taking a license in a work resulting from its funding, or from adopting any policy that would "restrain or limit the acquisition or exercise of [copyright] rights".
  • This is strictly my personal opinion, but this bill doesn't seem likely to become law, at least this session. With hotly-contested elections less than two months away, and a new Congress and administration to take office in January, there's not enough time for the bill to move; there's not even a Senate companion bill. I'd call this a stalling tactic. Advocates of public access, who could be working to adopt policies at other funding agencies, instead have to divert their energy to fend off this ludicrously-named bill. The agencies themselves may hesitate to move forward with new policies until the legislation is resolved. And this could change the narrative about the NIH policy: instead of talking about how well it's worked, the media and policymakers will be talking about the opposition to the policy. It's a setback, and a cynical tactic, but the odds of this bill actually becoming law are slim.
  • See also our past post about the bill.